The opinion
Shephjskj), (J. J.:
If the oral promise alleged in the complaint was made by the defendant to the plaintiffs it is
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plain that it cannot bo enforced against the separate personal estate of the defendant, as it is not in writing, is without the written consent of the husband and does not charge such separate estate.
Flaum
v.
Wallace,
103 N. C., 296 . In order to avoid this difficulty it is insisted that the promise was made to the husband, and therefore the principles laid down in Elaum’s case do not apply, and that she can charge, in favor of her husband, a large part of the capital of her personal estate without any formality whatever. .By no means admitting such a proposition, but conceding i.t for the purposes of the argument, we are nevertheless unable to see how the plaintiffs can recover. If, as contended, the promise was made by the wife to the husband, it is well settled that the plaintiffs, if they are not parties to the contract, cannot sue upon it.
Morehead
v.
Wriston, 73
N. C., 398; Brown on Actions, 99; Pollock on Contracts, 191. This would seem to put an end to the plaintiffs’ action, but granting that under the Code of Civil Procedure the action may be maintained by the real parties in interest, which in this case it is claimed are the plaintiffs, for whose benefit it is alleged the contract was made, we must still deny their right to recover.
If, as insisted, the plaintiffs can sue, if is because they are substantially the parties interested in the contract, and as they were present at the time of the promise and impliedly assented to the same, and as they claim that their alleged forbearance constituted the consideration (there really being none moving from the husband), we cannot but regard it, at least in an action of this nature, as substantially an agreement between the plaintiffs and the defendant, and therefore within the case of
Flaum
v.
Wallace, supra.
Entertaining these views, it is unnecessary to discuss the other interesting questions raised by the learned counsel.
Affirmed.